FolioStop Terms of Service
FolioStop is a website creation and hosting service that allows Customers to create unique websites based on pre-defined layouts and components. The services provided by FolioStop ("FolioStop Services") consist of the FolioStop websites, the website creation software ("FolioEdit"), any Customer website that makes use of the "FolioStop Framework" (servers, software, and databases that drive the FolioStop Services), and any other features, content, or applications offered from time to time by FolioStop. FolioStop Services are hosted and operated in the U.K.
This Terms of Service Agreement ("Agreement") sets forth the legally binding terms for your use of the FolioStop Services. By using the FolioStop Services, you agree to be bound by this Agreement, whether you are a "Visitor" (which means that you simply browse the FolioStop website) or you are a "Customer" (which means that you have registered with the FolioStop Free Trial, or you are an active or previous subscriber to the FolioStop Services). The term "User" refers to a Visitor or a Customer. You are only authorised to use the FolioStop Services (regardless of whether your access or use is intended) if you agree to abide by all applicable laws and to this Agreement. If you do not agree with it, you should leave the FolioStop Website and discontinue use of the FolioStop Services immediately. By accessing or using any part of the FolioStop Services, you confirm also that your local legislation is compatible with these Terms and that these Terms shall prevail on your legislation. If you wish to become a Member and make use of the FolioStop Services, you must read this Agreement and indicate your acceptance during the Registration process.
This Agreement includes FolioStop's policy for acceptable use of the FolioStop Services and Content posted on the FolioStop Website, your rights, obligations and restrictions regarding your use of the FolioStop Services and FolioStop's Privacy Policy. In order to participate in certain FolioStop Services, you may be notified that you are required to download software or content and/or agree to additional terms and conditions. Unless otherwise provided by the additional terms and conditions applicable to the FolioStop Services in which you choose to participate, those additional terms are hereby incorporated into this Agreement.
We reserve the right, at our sole discretion, to amend or revise the Agreement at any time without further notice. In this case, we will post changes to this Agreement on this page and will indicate at the top of this page the date the Agreement was last revised. The amended Agreement will be effective immediately and you will be bound by the amended Agreement from that time. It is your responsibility to regularly check this page to determine if there have been any changes to the Agreement and to review such changes.
1. Scope of the FolioStop Services
1.1 FolioStop provides a hosted service that allows the Customer to create a website ("Site") based on pre-defined layouts ("Layouts") and page components ("Page Components"). Within a selected Layout, the Site can contain the following page types ("Page Types"):
a) Text
b) Image Gallery
c) Video Gallery
d) Music Gallery
1.2 In addition to the choice of site Layout and Page Components that are available at the time, the Site can be styled in terms of fonts and text styles, Page Component colours, background colours and background image, in accordance with the functionality of the available Layouts and Page Components at the time. There may be one or more Page Components for each page type and We reserve the right to update or amend these existing Page Components and Layouts from time to time and without prior notification.
1.3 FolioStop Services are provided on servers operated by FolioStop only. FolioStop services may not be:
a) copied or moved to or operated on another hosting platform or server; or
b) decompiled or reverse engineered; or
c) redistributed;
1.4 The Customer acknowledges and agrees that:
(a) with the exception of the Free Trial period, the provision of the FolioStop Services to the Customer is based upon the Customer at all times maintaining a valid Subscription. In the event that the Customer at any time after the end of the Free Trial period fails to maintain an active Subscription, the Site will default to a suitable maintenance page;
(b) the Customer will have no access to the FolioStop Framework; specifically no FTP or other access to the server that allows the transfer of files other than by using FolioEdit. The Customer may at no time access the database that drives the Site. The Customer will have no facility to make local backup copies of the Site. Once files (of any media) are added to the Site they can be deleted or replaced but cannot be extracted from the Site, unless downloaded from a publicly available web page;
(c) the Site will only function within the FolioStop Framework;
(d) the Site content can be added, modified, and deleted using FolioEdit only;
(e) at this point in time, FolioStop does not permit the Customer to add any custom or third party software, code, or plug-ins to the Site.
2. Software Licence
2.1 In consideration of payment by the Customer of an active Subscription and the Customer agreeing to abide by the terms of this Licence, the Supplier hereby grants to the Customer a non-exclusive, non-transferable licence to use the Software on the terms of this Licence.
2.2 Except as expressly set out in this Licence or as permitted by any local law, the Customer undertakes:
(a) not to copy the Software except where such copying is incidental to normal use of the Software, or where it is necessary for the purpose of back-up or operational security;
(b) not to rent, lease, sub-license, loan, translate, merge, adapt, vary or modify the Software;
(c) not to make alterations to, or modifications of, the whole or any part of the Software, nor permit the Software or any part of it to be combined with, or become incorporated in, any other programs;
(d) not to disassemble, decompile, reverse engineer or create derivative works based on, the whole or any part of the Software nor attempt to do any such thing except to the extent that (by virtue of section 296A of the Copyright, Designs and Patents Act 1988) such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by the Customer during such activities:
(i) is used only for the purpose of achieving inter-operability of the Software with another software program; and
(ii) is not unnecessarily disclosed or communicated without the Supplier's prior written consent to any third party; and
(iii) is not used to create any software which is substantially similar to the Software;
(e) to keep all copies of the Software secure and to maintain accurate and up-to-date records of the number and locations of all copies of the Software;
(f) to replace the current version of the Software with any updated or upgraded version or new release provided by the Supplier under the terms of this Licence immediately on receipt;
(g) to include the copyright notice of the Supplier on all entire and partial copies you make of the Software on any medium; and
(h) not to provide or otherwise make available the Software in whole or in part (including but not limited to program listings, object and source program listings, object code and source code), in any form to any person without prior written consent from the Supplier.
2.3 The Customer acknowledges that it has no right to have access to the Software in source code form or in unlocked coding or with comments.
2.4 The Customer acknowledges that the Software has not been developed to meet its individual requirements, and that it is therefore the Customer's responsibility to ensure that the facilities and functions of the Software meet the Customer's requirements. The Customer must determine this by trying out the software during a Free Trial. There is no written specification for the functionality of the FolioStop Services.
2.5 The Customer acknowledges that the Software may not be free of bugs or errors, and agree that the existence of minor errors shall not constitute a breach of this Licence.
3. Development and Acceptance of site
3.1 It is the Customer's responsibility to design, build, and develop the Site using FolioEdit.
3.2 The Free Trial provides the Customer with unrestricted access to The FolioStop services, and so the Customer must decide during the Free Trial and based on this functionality whether they wish to Accept the Site.
3.3 Acceptance of the Site shall be deemed to have taken place upon the occurrence of any of the following events:
(a) the Customer uses any part of the Site for any purposes other than for test or trial purposes; or
(b) the Customer pays the Set Up Fee or creates a Subscription.
4. Access and support
4.1 The Customer acknowledges and agrees that FolioStop may from time to time need to make structural changes to the FolioStop system that could result in system downtime. Any such changes will (where possible or necessary) be broadcast in advance to all customers, and carried out at times during which the Supplier considers will cause the least disruption, and shall use reasonable endeavours to keep any such disruptions to a minimum.
4.2 FolioStop shall have no liability to the Customer for any downtime under clause 4.1 above, nor for any downtime caused by general Internet failure, the failure of any Internet connection or the failure of any Customer equipment.
4.3 In the event of any technical issue regarding the Software or the Site, the Customer should refer first to the HELP section of the FolioStop website at: http://help.foliostop.com. If the Customer is not able to remedy the problem having regard to such HELP site, then the Customer may contact the Supplier by email at: support@foliostop.com or such other address as may be given from time to time on the FolioStop website.
5. Charges and payment
5.1 At the end of the Free Trial (or any time before) it is the Customer's responsibility to make two payments in relation to the FolioStop services:
(a) pay the Set Up Fee as defined in http://myaccount.foliostop.com at the time; and
(b) set up a Subscription to the FolioStop Services. The Subscription can be paid in increments of 1, 3, 6 or 12 months. The subscription price is dependent on the Subscription package that applies to Site and will be defined at http://myaccount.foliostop.com. We reserve the right to change Subscription Package prices at any time, though any changes will only come into effect at the end of the Customer's current subscription period. If the Customer changes their Subscription package this will have an effect on the price they must pay:
(i) Immediately, in the case where the package is of a greater value;
(ii) At the end of the current subscription period, in the case where the package is of a lesser value.
5.2 All payments must be made online at http://myaccount.foliostop.com using a debit or credit card only.
5.3 Regarding the set up of a Subscription, the Customer may specifically request on the payment form that the Subscription will auto-renew. By making this request the Customer authorises FolioStop to automatically bill the Customer's debit / credit card for the next Subscription period, on or near the day that the existing Subscription is due to expire. The Subscription period automatically billed will be the same time period as the previous Subscription period. The package price will be the price of the Customer's account package on the day of the renewal as specified in http://myaccount.foliostop.com.
5.4 All payments are non-refundable
5.5 Where the Customer requires FolioStop to carry out any further work in:
(a) designing the Site;
(b) technical assistance not covered by the email or phone support;
then FolioStop will submit an invoice to the Customer for the work, as determined by an advance quotation, and this invoice must be paid within 14 days of the date of issue. Non payment of such an invoice with the 14 days will constitute a breach of this agreement and the Site may be taken offline until the invoice has been paid.
5.6 All amounts quoted under this agreement are exclusive of VAT.
6. Warranties
6.1 Each of the parties warrants to the other that it has full power and authority to enter into and perform these conditions.
6.2 FolioStop shall perform the Services with reasonable care and skill.
6.3 FolioStop warrants that the Site will perform substantially in accordance with the Site functionality at the time of the Free Trial throughout the Customer's Subscription period, except where automatic improvements are made by FolioStop that improve the functionality of the Site. If the Site does not so perform, FolioStop shall, for no additional charge, carry out any work necessary in order to ensure that the previous Site functionality is restored.
6.4 These conditions set out the full extent of FolioStop's obligations and liabilities in respect of the supply of the Services. All conditions, warranties or other terms concerning the Services which might otherwise be implied into these conditions or any collateral contract (whether by statute or otherwise) are hereby expressly excluded.
7. Limitation of remedies and liability
7.1 Nothing in these conditions shall operate to exclude or limit either party's liability for:
(a) death or personal injury caused by its negligence; or
(b) any breach of the terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
(c) fraud; or
(d) any other liability which cannot be excluded or limited under applicable law.
7.2 THE SUPPLIER SHALL NOT BE LIABLE TO THE CUSTOMER FOR ANY LOSS OF PROFIT, ANTICIPATED PROFITS, REVENUES, ANTICIPATED SAVINGS, GOODWILL OR BUSINESS OPPORTUNITY, OR FOR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE.
7.3 The Supplier's liability for infringement of third-party intellectual property rights shall be limited to breaches of rights subsisting in the UK.
7.4 Subject to clause 7.1, each party's aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with these conditions or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the amount of the Charges paid by the Customer to the Supplier in the period of 12 months prior to the date of the claim.
8. Intellectual property rights
8.1 All Intellectual Property Rights in the Site (including in the content of the Site and the Software), but excluding the Customer Content, arising in connection with these conditions shall be and remain the property of FolioStop, and FolioStop grants the Customer a non-exclusive licence of such Intellectual Property Rights in accordance with clause 2 for the purpose of operating the Site.
8.2 The Customer shall indemnify FolioStop against all damages, losses and expenses arising as a result of any action or claim that the Customer Content infringe the Intellectual Property Rights of a third party.
9. Site content
9.1 The Customer shall ensure that the Customer Content (any site content, text, images, files, or anything else) does not infringe any applicable laws, regulations or third party rights (including material which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous or in breach of any third party Intellectual Property Rights) (Inappropriate Content).
9.2 FolioStop shall grant the Customer access to edit the Customer Content using FolioEdit only. No other access of any sort will be granted.
9.3 The Customer acknowledges that the FolioStop has no control over any content placed on the Site by Visitors and does not purport to monitor the content of the Site. FolioStop reserves the right to remove content from the Site where it reasonably suspects such content is Inappropriate Content. The Supplier shall notify the Customer promptly if it becomes aware of any allegation that any content on the Site may be Inappropriate Content.
9.4 The Customer shall indemnify FolioStop against all damages, losses and expenses arising as a result of any action or claim that the Customer Content may constitute Inappropriate Content.
9.5 FolioStop may include the statement "Powered by FolioStop" on the Site, usually in the footer. This will link to the main FolioStop website.
10. Data protection
10.1 FolioStop warrants that, to the extent it processes any Personal Data on behalf of the Customer:
(a) it shall act only on instructions from the Customer; and
(b) it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data.
10.2 In this clause 10, Personal Data has the meaning given in the Data Protection Act 1998.
11. Term and termination
11.1 This agreement shall commence on the date the Customer signs up to the Free Trial.
11.2 Either party may terminate this agreement immediately at any time by written notice to the other party if:
(a) that other party commits any material breach of its obligations under these conditions which (if remediable) is not remedied within 30 days after the service of written notice specifying the breach and requiring it to be remedied; or
(b) that other party:
(i) ceases to trade (either in whole, or as to any part or division involved in the performance of these conditions); or
(ii) becomes insolvent or unable to pay its debts within the meaning of the insolvency legislation applicable to that party; or
(iii) a person (including the holder of a charge or other security interest) is appointed to manage or take control of the whole or part of the business or assets of that party, or notice of an intention to appoint such a person is given or documents relating to such an appointment are filed with any court; or
(iv) the ability of that party's creditors to take any action to enforce their debts is suspended, restricted or prevented or some or all of that party's creditors accept, by agreement or pursuant to a court order, an amount of less than the sums owing to them in satisfaction of those sums; or
(v) any process is instituted which could lead to that party being dissolved and its assets being distributed to its creditors, shareholders or other contributors (other than for the purposes of solvent amalgamation or reconstruction).
11.3 On expiry or termination of this agreement for any reason, all licences granted by FolioStop under these conditions (including without limitation the Licence) shall terminate immediately. For the avoidance of doubt, FolioStop shall not be required to return to the Customer (and there shall be no other method for the Customer to export) and Customer Content or Site content upon termination of this agreement or any Subscription or otherwise.
11.4 On expiry or termination of this agreement, all provisions of these conditions shall cease to have effect, except that any provision which can reasonably be inferred as continuing or is expressly stated to continue shall continue in full force and effect.
12. Force majeure
12.1 The definition in this clause applies in these conditions.
Force Majeure Event: any event arising that is beyond the reasonable control of the affected party (including any industrial dispute affecting any third party, governmental regulations, fire, flood, disaster, civil riot or war).
12.2 A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under these conditions shall forthwith notify the other and shall inform the other of the period for which it is estimated that such failure or delay will continue. The affected party shall take reasonable steps to mitigate the effect of the Force Majeure Event.
13. Confidentiality
13.1 The definition in this clause applies in these conditions.
Confidential Information: all information, whether technical or commercial (including all specifications, drawings and designs, disclosed in writing, on disc, orally or by inspection of documents or pursuant to discussions between the parties), where the information is:
(a) identified as confidential at the time of disclosure; or
(b) ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
13.2 Each party shall protect the Confidential Information of the other party against unauthorised disclosure by using the same degree of care as it takes to preserve and safeguard its own confidential information of a similar nature, being at least a reasonable degree of care.
13.3 Confidential Information may be disclosed by the receiving party to its employees, affiliates and professional advisers, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information received.
13.4 The obligations set out in this clause 13 shall not apply to Confidential Information which the receiving party can demonstrate:
(a) is or has become publicly known other than through breach of this clause 13; or
(b) was in possession of the receiving party prior to disclosure by the other party; or
(c) was received by the receiving party from an independent third party who has full right of disclosure; or
(d) was independently developed by the receiving party; or
(e) was required to be disclosed by a governmental authority, stock exchange or regulatory body, provided that the party subject to such requirement to disclose gives the other party prompt written notice of the requirement.
13.5 The obligations of confidentiality in this clause 13 shall not be affected by the expiry or termination of these conditions.
14. Notices
14.1 A notice given under these conditions shall be sent by e-mail.
15. Assignment
Neither party may assign or transfer any of its rights or obligations under these conditions without the prior written consent of the other party, such consent not to be unreasonably withheld or delayed.
16. Entire agreement
Neither party shall have any remedy in respect of any untrue statement (whether written or oral) made to it on which it relied in entering into these conditions (Misrepresentation), and neither party shall have any liability other than pursuant to the express terms of these conditions. Nothing in these conditions shall exclude or limit either party's liability for any Misrepresentation made knowing that it was untrue. Each party's liability for Misrepresentation shall be subject to the limit set out in clause 7.2.
17. Third party rights
17.1 The right of the parties to terminate, rescind, or agree any amendment, variation, waiver or settlement under these conditions is not subject to the consent of any person who is not a party to this agreement.
17.2 This agreement is made for the benefit of the parties to it and is not intended to benefit, or be enforceable by, any other person.
18. Variation and waiver
18.1 A variation of these conditions shall be in writing and signed by or on behalf of both the Supplier and the Customer.
18.2 A waiver of any right under these conditions is only effective if it is in writing, and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. No waiver shall be implied by taking or failing to take any other action.
18.3 Unless specifically provided otherwise, rights arising under these conditions are cumulative and do not exclude rights provided by law.
19. Severance
19.1 If any provision (or part of a provision) of these conditions is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
19.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
20. Governing law and jurisdiction
20.1 These conditions and any disputes or claims arising out of or in connection with its subject matter are governed by and construed in accordance with the law of England.
20.2 The parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with these conditions.
Please contact us at: enquiries@foliostop.com with any questions regarding this Agreement.
